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Frederick V. Holman 






On Initiative amendments of the 




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Oregon Constitutiont 






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ADDRESS OF 
FREDERICK V. HOLMAN 

PRESIDENT OF 
THE OREGON BAR ASSOCIATION 



AT ITS ANNUAL MEETING, NOVEMBER 
FIFTEENTH, NINETEEN HUNDRED 
AND TEN, AT PORTLAND, OREGON 



SOME INSTANCES OF UNSATISFACTORY 
RESULTS UNDER INITIATIVE AMEND- 
MENTS OF THE OREGON CONSTITUTION 



Portland, Oregon 
, 1910 



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.Portland, Ovegotx. 

mo. H. HiMES, ARflt $#«<^/r, 



ADDRESS OF FREDERICK V. HOLMAN 

y PRESIDENT OF 

.OV^N.^ THE OREGON BAR ASSOCIATION 



• X f^ Q AT ITS ANNUAL MEETING, NOVEMBER 

■^ kQ' (^\ FIFTEENTH, NINETEEN HUNDRED 

AND TEN, AT PORTLAND, OREGON 



Some Instances of Unsatisfactory Results under Initia- 
tive Amendments of the Oregon Constitution* 

To the man untrained in law, not alone statutory law, but 
the common law and the laws of sociology, it doubtless seemed 
very simple, sufficient and efficient to adopt and to exercise the 
powers under the initiative and referendum amendments of 
the Oregon Constitution relating to enacting laws and amend- 
ing the Constitution by the legal voters of the State at larg-e, 
but also by enacting- and amending charters of cities, towns 
and other municipal corporations by their legal voters, and 
thus largely to do away with precedents and hasten the dawn 
of a political and social millennium in the body politic. 

That men selected by popular vote to make up the State 
Leg-islature were often careless, somtimes stupid and occasion- 
ally venal, seemed to prove that men assembled in a legislative 
body were a curse instead of a blessing, and that the same 
men, together with the voters who had chosen them, were care- 
ful, intelligent, efficient, virtuous, capable and honest men — 
when acting individually as law makers. Apparently these 
alleged reformers thought that as precedent was sometimes a 
bar tO' progress it should be done away with as far as possible. *j^ 
But they forgot — or more likely, as they could not forget what 
they never knew — they were unaware that to upset existing 
conditions is to create new conditions without precedents, and 
that the first thing tO' do is to establish new precedents that 
the new order may exist and continue. That, as was said by 
Herbert Spencer of similar conditions, that it was like an 
unskillful worker in metals who' had a pot with a metal top 
which fitted in all places but one, and in endeavoring to make 
it fit in this one place struck it with a hammer, and the result ■ 

* See Appendix D, page 39, for a discussion of the amendment of 
the Oregon Constitution, adopted November 8, 1910, making nugatory 
trial by jury, by a method of appeal to the Supreme Court. 



was that while it fitted tolerably well in this one place, there 
were many places where it fitted before where it did not fit 
at all. 

These theorists seem to believe that all human ills — with 
the possible exception of physical ones — could be done away 
with by amendments of Constitutions and municipal char- 
ters, and by the passage of statutes. and ordinances. And 
thus the laws of sociology could be repealed or amended, pos- 
sibly even the law of supply and demand and also the law of 
gravity, and thus upset gravity. 

And so it came about that without changing the voters, 
except by numbers, as Oregon is a growing State, the people 
who supposed they could not govern themselves by a repre- 
sentative form of government, to which they were accustomed, 
adopted a democratic form of government, of which they 
knew nothing as to its workings, evidently believing that as 
they were incapable of electing proper representatives they 
were capable of enacting their laws by popular vote, and as 
conditions were unsatisfactory they could be bettered by upset- 
ting the existing order. 

But the result, partly at least, must be disappointing to 
these theorists, for the crudity of these popular amendments 
of the Constitution and other enactments has been such that 
they have been amended by the Courts — practically legislat- 
ing amendments by decisions — to make these enactments 
workable. Fortunately, perhaps, these initiative amendments 
of the Constitution do not provide against their amendment 
by judicial decisions. And this suggests whether a further 
amendment to the initiative provisions of the Oregon Consti- 
tution might not be made by abolishing the Legislature and 
giving all legislative power to the people and to the 
Courts, as seems to be the case with these amendments of the 
Constitution. 

In this address I shall call attention mainly tO' the enact- 
ment and amendments of charters of cities, towns, and other 
municipal corporations under the Oregon Constitution as 
amended, so as to allow the legal voters of each city and town 
to enact and amend its own charter, and to decisions of our 



Gift 



Courts in relation thereto. To consider the whole initiative 
and referendum scheme of government in Oregon would 
require a book with copious notes. 

The Initiative and Referendum Constitutional 
Amendments of the Oregon Constitution 

By initiative vote, June 2, 1902, Section i of Article IV of 
the Constitution of Oregon was amended by which legislative 
"measures" or amendments to^ the Constitution could be 
adopted under an initiative petition. It will be noted that the 
number of voters necessary to sign an initiative petition is 
not prescribed, but is left uncertain, and expressed in the nega- 
tive, by the words, "not more than eight per cent of the legal 
voters shall be required to propose any measure by such peti- 
tion," while the number of legal voters to sign a referen- 
dum petition is fixed, viz. : "Five per cent of the legal 
voters." * Nor did the act of February 24, 1903, provide the 
number or percentage of voters necessary to sign an initiative 
petition. 

I shall presently show that the Legislative Act of February 
25, 1907, which repealed said act of 1903, does not provide 
the number or percentage of voters necessary to sign an initi- 
ative petition, although it does provide the percentage of 
voters necessary to sign a referendum petition against any 
municipal measure. 

It is further provided by said amendment of the original 
Section i of Article IV of the Constitution, that "The whole 
number of votes cast for Justice of the Supreme Court at the 
regular election last preceding the filing of any petition for 
the initiative or for the referendum shall be the basis on which 
the number of legal voters necessary to sign such petition 
shall be counted." This last clause applies only to said Section 
I, and does not apply to Section la of said Article IV, adopted 
in 1907, relating to initiative and referendum petitions con- 
cerning municipal legislation. 

Under initiative petition the people of the State of Oregon 
on June 4, 1906, amended said Article IV of the State Con- 

* See Appendix A. 



stitution by adding tO' it a section called Section la, and at 
the same time amended Section 2 of Article XI of the 
Constitution. 

The part of said Section la relating to municipalities and 
districts is as follows : 

"The initiative and referendum powers reserved to the people by 
this Constitution are hereby further reserved to the legal voters of 
every municipality and district, as to all local, special and municipal 
legislation, of every character, in or for their respective municipalities 
and districts. The manner of exercising said powers shall be pre- 
scribed by general laws, except that cities and towns may provide for 
the manner of exercising the initiative and referendum powers as to 
their municipal legislation. Not more than ten per cent of the legal 
voters may be required to order the referendum nor more than fifteen 
per cent to propose any measure, by the initiative, in any city or 
town." * 

Said Section 2 of Article XI as so amended is as follows : 

"Corporations may be formed under general laws, but shall not be 
created by the Legislative Assembly by special laws. The Legislative 
Assembly shall not enact, amend or repeal any charter or act of 
incorporation for any municipality, city or town. The legal voters of 
every city and town are hereby granted power to enact and amend 
their municipal charter, subject to the Constitution and criminal laws 
of the State of Oregon." t 

The Oregon Supreme Court has held that Section la of 
Article IV and Section 2 of Article XI of the Oregon Con- 
stitution as amended must be construed together, sO' that this 
question may be considered as settled. 

Farrell v. City of Portland, 52 Ogn. 587. 

These two amendments of the Oregon Constitution (Sec. 
la of Article IV and Section 2 of Article XI) I shall refer to 
as "the amendments of 1906." 

The Oregon Supreme Court has held in several cases that 
the provisions of the amendments of 1906 are not self-exe- 
cuting, but require a general law passed by the Legislature 
or proper action by a municipality or its voters to make these 
amendments effective. These decisions I shall more specifically 
refer to. 



* See Appendix B. 
t See Appendix C. 



The Law in Oregon Prior to the Initiative and 
Referendum Amendments to its Constitution 

It is proper first to consider some phases of the law as they 
v/ere estabHshed and had become stare decisis prior to these 
amendments. I call particular attention tO' the law as so 
established on the following powers and subjects, viz. : 

First. The lav/ of Eminent Domain. 

Second. The power to grant franchises and the control 
of highways. 

Third. The law relating to bridges on navigable rivers 
wholly within a State. 

First, The Law of Eminent Domain 

In 10 Am. and Eng. Ency. of Lazv (2d Ed.), page 1049, 
it is said : 

"The right to exercise the power of eminent domain is inherent in 
sovereignty, necessary to it and inseparable from it. From the very 
nature of society and organized government this right must belong to 
the State. It is a part of the sovereign power of every nation. * * * 
It lies dormant in the State until legislative action is had pointing out 
the occasions, the modes and the agencies for its exercise." 

In Lezms on Eminent Domain, Sections 237 and 238, it is 
said : 

"Sec. 237. The power of eminent domain, being an incident of 
sovereignty, is inherent in the Federal Government and in the several 
States, by virtue of their sovereignty. It does not exist in any sub- 
ordinate political division or public corporation unless granted by the 
sovereign power. Consequently it does not exist in any territorial 
government unless it has been expressly granted by Congress. This 
power, with all its incidents, is vested in the Legislatures of the 
several States by the general grant of legislative powers contained 
in the Constitution. From this it follows, first, that the power can 
only be exercised by virtue of a legislative enactment; second, that 
the time, manner and occasion of its exercise are wholly in the con- 
trol and discretion of the Legislature, except as restrained by the 
Constitution." 

"Sec. 238. The necessity for exercising the power is exclusively 
for the Legislature. Whether the power of eminent domain shall be 
put in motion for any particular purpose, and whether the exigencies 
of the occasion and the public welfare require or justify its exercise, 
are questions which rest entirely with the Legislature." 

In Mills on Eminent Domain, Section i, it is said: 

"Eminent domain, or the power of the sovereign to condemn 
private property for publjc use, has been recognized and treated of by 



jurists for centuries. The commentators on the civil law treat it as an 
established power of long standing. Pufifendorf calls it the 'exercise 
of transcendental propriety'; as if the sovereign thereby resumed 
possession of that which had been previously granted to the subject 
upon the condition that it might be again resumed to meet the neces- 
sities of the sovereign. * * * j^ ^^g United States this right 
of the subject is secured by the Federal Constitution, and by a separate 
clause in the Bill of Rights of almost every State in the Union. In 
the absence of provisions in the Constitutions, the Courts have con- 
sidered that the principle was so universal and fundamental that laws 
not recognizing the right of the subject to compensation would be 
void. The Constitutions of the States do not confer upon the Legis- 
latures the power of eminent domain, but they recognize its existence 
and attach conditions upon the exercise of the power. The right 
existed prior to the Constitutions." 

In 2 Elliott on Railroads (2nd Ed.), Section 950 (page 
473), it is said: 

"The power of eminent domain has existed in all ages as an 
acknowledged attribute of sovereignty. It is inherent in every sove- 
reign Government, and is not conferred by Constitutions, but is 
limited and regulated by them. It cannot be surrendered by grant 
or contract, since its continued exercise is essential to the existence 
of organized society. This power exists in each of the States of the 
Union, whether it is expressly conferred by the Constitution or not." 

In the case of Leeds v. The City of Richmond, 102 Ind. 
377, speaking of the right of a municipal corporation to exer- 
cise the powers of Eminent Domain, the Supreme Court of 
Indiana said : 

"The high and extraordinary power of eminent domain may not 
exist without a special grant of power," Citing 2 Dillon Mun. Cor. (3rd 
Ed.), Sections 574, 575. 

In Cooley on Constitutional Limitations (7th Ed.), page 
753, Eminent Domain is defined as : 

"That superior right of property pertaining to the sovereignty by 
which the private property acquired by its citizens under its protection 
may be taken or its use controlled for the public benefit without 
regards to the wishes of its owners." 

The power of Eminent Domain is not inherent in a munici- 
pal corporation, nor is it granted, nor can it be exercised merely 
by implication. It must be granted by the Legislature, unless 
the Legislature is prohibited from sO' doing by the Constitu- 
tion, or be granted by the Constitution of the State, by express 
terms, or by a necessary implication equivalent tO' express 



terms. Eminent Domain being an incident of sovereignty its 
exercise can be granted by the State to municipal corporations 
and quasi public corporations. Of course, the people of a 
State can determine the exercise of this power by means of 
appropriate provisions in its Constitution. There are no 
express provisions in the Oregon Constitution giving this 
power. It therefore rests wholly in the Legislature unless 
Section 2 of Article XI, as now existing, grants the right to 
exercise such power. The only power given is as follows : 

"The legal voters of every city and town are hereby granted 
power to enact and amend their municipal charter, subject to the 
Constitution and criminal laws of the State of Oregon." 

It must be borne in mind that the power to enact and 
amend charters is subject to the Constitution of the State, and 
to the sovereignty of the State; and that the exercise of the 
power of Eminent Domain is a matter which concerns all the 
people and the State itself. That this power may be delegated 
to a city or town through proper authority needs no citation 
of authorities. Can it be truly said that the mere right to 
enact or amend a charter is a grant or a delegation of the sov- 
ereign power of Eminent Domain without limitation? And, 
if limited, are its limitations other than Section 18 of Article 
I of the Oregon Constitution, which is : 

"Private property shall not be taken for public use, nor the par- 
ticular service of any man be demanded, without just compensation; 
nor, except in case of the State, without such compensation first 
assessed and tendered." 

Prior to the adoption of the amendment of 1906 the Ore- 
gon Supreme Court had passed on questions involved in the 
power of Eminent Domain in a numiber of cases, among which 
are the following : 

In Dallas Lumbering Co. v. Urquhart, 16 Ogn. 67, Mr. 
Justice Strahan said (pages 69, 70) : 

"It is not for the Courts to say in what particular instances or 
for what purposes the power of eminent domain may be exercised; 
that power belongs exclusivelj'- to the Legislature, limited only by 
the Constitution, and that is, the use must be public and just compen- 
sation must be jnade. 

"Says an eminent American author: 'As the power to take is 
universal, so it is absolute; that is to say, the Legislature are the sole 



8 

judges of the existence of the exigency which demands the sacrifice 
of the rights of individuals.' 'I admit,' says Mr. Chancellor Walworth, 
'that the Legislature are the sole judges as to the expediency of 
exercising the right of eminent domain for the purpose of making 
public improvements, either for the benefit of the inhabitants of the 
State generally, or of any particular section thereof.' " 

In Bridal Veil Linnhering Co. v. Johnson, 30 Ogn. 205, 
Mr. Justice Bean said (page 208) : 

"The right of eminent domain is a right of sovereignty, and can 
be exercised only by legislative authority." 

In Grady v. Dundon, 30 Ogn. 337, Mr. Chief Justice 
Moore said : 

"The power to appropriate private property to public use is 
derived from the Legislative Assembly, which may prescribe the mode 
of its exercise, and must provide a judicial tribunal for the determina- 
tion of certain facts as a prerequisite to the exercise of such power 
(2 Kent's Commentaries, 340)." 

In Huddleston v. Eugene, 34 Ogn. 343, Mr. Justice Moore, 
speaking of the exercise of the right of Eminent Domain, said 
(page 358) : 

"No prerogative of sovereign power should be watched with 
greater vigilance than that which takes the property of the individual, 
and devotes it to a public use." 

In Grand Ronde Electric Co. v. Drake, 46 Ogn. 246, Mr. 
Chief Justice Moore said (page 248) : 

"It has been held by this Court that the Legislative Assembly 
must in the first instance declare the necessity for and the expediency 
of an exercise of the right of eminent domain in an act conferring 
power for that purpose." 

It will thus be seen that the Oregon Supreme Court had 
established the doctrine that under the Constitution of the 
State the right of Eminent Domain "can be exercised only by 
legislative authority," and thus made this doctrine a part of 
the Oregon Constitution. Certainly it is as much a part of 
the Oregon Constitution as the leading cases decided by the 
Supreme Court of the United States construing parts of the 
Constitution of the United States have becom^e a part of the 
latter Constitution. The opinions of Chief Justice Marshall 
and other great judges of the Supreme Court of the United 
States are now recognized by all Courts and by the legal pro- 



fession as being as much a part of the Constitution of the 
United States as though the principles therein announced had 
been expressly set forth in that Constitution itself. 

Under said Section 2 of Article XI, as amended, of the 
Oregon Constitution, does not the limitation that amendments 
of municipal charters shall be "subject to the Constitution" 
make such amendments subject to these decisions of the 
Supreme Court of Oregon, which are a part of its Constitu- 
tion? This applies not only to the pOAvers of Eminent 
Domain, but also to the regulation and control of highways 
and the granting' of franchises thereon. 

It would seem that at the time of the adoption of the 
amendment of Section 2 of Article XI of the Constitution, in 
June, 1906, the power of the legal voters of a municipal cor- 
poration "to enact or amend their municipal charter, subject 
to the Constitution" did not give the power to such voters 
to give a municipality the right to exercise the powers of 
Eminent Domain by its own initiative, but that such powers 
could be conferred only by an amendment to the Oregon Con- 
stitution or by the Legislature, especially as the Oregon 
Supreme Court, in Straw v. Harris, 54 Ogn. 424, held that 
the Legislature, by a general law, "may at any time alter, 
amend or even repeal any or all of the charters within it," and 
could thus give to municipalities the right to exercise the power 
of Eminent Domain. 

It must not be forgotten that a city has imposed upon it 
two kinds of duties or powers : one public, or governmental, 
as an instrumentality of the State, and under which it exer- 
cises police powers; the other is private, or proprietary, in 
which it is as a legal individual. It is in the latter capacity 
that it owns its water works and other public utilities, and as 
such it is liable for negligence as a private corporation or an 
individual is. I call attention tO' the learned and complete 
decision on this question by Mr. Justice Bean in Esherg Cigar 
Co. V. Portland, 34 Ogn. 282. 

See also Wagner v. Portland, 40 Ogn. 394. 

In the exercise of the power of Eminent Domain (which is 
not a part of the police power), a city had to be granted by 
the Legislature the right to exercise the power of Eminent 



lO 

Domain, and, particularly so, when it sought to appropriate 
property for use under its duties as a proprietor, e. g. as the 
owner of public utilities. 

Second, The Power to Exercise Control over Streets, 
and Highways and to Grant Franchises 

The streets of a city do not belong to a city, but to the 
people of the whole State, as highways, and no control can 
be exercised over them, and no franchise can be granted over 
them unless authorized by the Legislature or by the Constitu- 
tion. This was the law, at least, when the amendments of 
1906 were adopted. 

The law on this subject is well stated in 3 Elliott on Rail- 
roads (2nd Ed.), Section 1076, where it is said: 

"The Legislature of the State represents the public at large and 
has paramount authority over its public ways, including the streets 
in cities as well as country roads. Municipal corporations have no 
inherent power to create other corporations or grant franchises, and 
they cannot give a railroad company the right to lay its tracks and 
operate its road in their streets unless they are authorized, either 
expressly or impliedly, to do so by the Legislature. Authority to use 
highways in this way must come, either directly or indirectly, from 
the Legislature." 

In s Abbott on Municipal Corporations, Section 897, it is 
said: 

"The State is the ultimate and original source of power in respect 
to the establishment, maintenance and use of highways. Any lawful 
permission, whatever it may be called, must proceed from the State 
Legislature and the validity of grants is determined by the Constitu- 
tion and other tests applied to all legislation. Special acts cannot 
be passed where the Constitution forbids. The Legislature can act 
in the granting of permission independent of subordinate govern- 
mental agencies of the State, though the tendency of later years, 
which is well grounded in reason, is for the State to confer upon local 
municipal authorities the right to represent and to act for it in the 
granting of permission for the occupation or use of the public high- 
ways. The power, however, when exercised by municipal or other 
subordinate public corporations, must be expressly granted or appear 
by indisputable implication." 

That this was the law in Oregon is well established by a 
number of decisions of the Oregon Supreme Court, among 
which are the following: 



II 

In City of East Portland v. Multnomah Co., 6 Ogn. 62, 
Mr. Justice McArthur said (page 65) : 

"The paramount and primary control of the highways of a State, 
including the streets in cities, is vested in the Legislature." 

In Multnomah County v. Sliker, 10 Ogn. 65, Mr. Chief 
Justice Lord said : 

"The facts in this case are stipulated, and involve the identical 
question decided by this Court in the case of East Portland v. Mult- 
nomah County (6 Or. R. 64), and subsequently, the principle on which 
the decision in that case proceeded, was re-examined and reaffirmed 
in the case of the City of Astoria v. Clatsop County, not reported 
for the reason that the question presented in the two cases were 
identical. It will thus be seen that the subject matter of this action 
has already received a careful and thorough investigation from the 
Court, and ample opportunity has been afforded for the correction of 
any error into which the Court might have fallen in the original 
decision. It is now brought the third time before us on briefs which 
cite no authorities, and suggest no reasons which have not already 
been considered by the Court, or which show that the original case 
was decided contrary to principle. The matter here is the Constitu- 
tionality of a statute, and the rule is said to be almost universal that 
in construing statutes and the Constitution, to adhere to the doctrine 
of stare decisis. (Seale v. Michell, 5 Cal. 481.) Certainly Courts nat- 
urally feel reluctant to depart from a decision which has been recog- 
nized by subsequent cases, unless error is plainly shown to exist, con- 
ceding even that a different conclusion might be reached, if the ques- 
tion presented were an open one. We have carefully examined the 
reasons on which the decision in East Portland v. Multnomah County 
is based and, as at present advised, reaffirm it by affirming the 
decision in this case. So it is ordered." 

Do the amendments of 1906 aboHsh this appHcation of 
stare decisis? If so, may not the Oregon Constitution be 
amended by the initiative so that stare decisis will be abolished 
altogether ? It appears to have been set aside by the Supreme 
Court as applied to the exercise of the powers of Eminent 
Domain by cities and towns. 

In Portland, etc., R. R. Co. v. City of Portland, 14 Ogn. 
194, Mr. Chief Justice Lord said : 

"The interest in the use of streets and highways, and public 
places, and their uses, being publici juris, the power of regulating 
such use is in the Legislature, as the representative of the whole 
people. It is a part of the political or governmental power of the 
State, in no way held in subordination to the municipal corporation. 
It has, therefore, been held in many cases that the Legislature has 
the power to authorize the building of a railroad on a street or high- 



12 

way, and may directly exercise this power, or devolve it upon munici- 
pal authorities. (Moses v. Railway Co., 21 111. 516; Murphy v. Chi- 
cago, 29 111. 279; Mercer v. Railway Co., 36 Pa. St. 99; Springfield v. 
Railroad Co., 4 Cush. 63; People v. Kerr, 27 N. Y. 18S; Lackland v. 
Railroad Co., 31 Mo. 180; City of Clinton v. Railroad Co., supra.)" 

In Simon v. Northrup, 27 Ogn. 427, Mr. Chief Justice 
Bean said (pages 501, 502) : 

"The law is too well settled to be questioned that the public 
highways of a city are not the private property of the municipality, 
but are for the use of the general public, and that, as the Legislature 
is the representative of the public at large, it has, in the absence of 
any Constitutional restriction, paramount authority over such ways, 
and may grant the use or supervision and control thereof to some 
other governmental agency, so long as they are not diverted to some 
use substantially different from that for which they were originally 
intended: 2 Dillon on Municipal Corporations, 656, and authorities 
there cited; Cooley on Constitutional Limitations (5th Ed.), 335, and 
note." 

On page 502 he said : 

"A city occupies, as it were, a dual relation to the State — the one 
governmental or political, and the other proprietary or private. In its 
governmental or political capacity it is nothing more than a mere 
governmental agent, subject to the absolute control of the Legisla- 
ture, except as restricted by the Constitution, and such property and 
easements as it may have in public streets and ways is held by it 
in such capacity, and at the will of the Legislature." 

And on page 504 he said : 

"It is competent for the Legislature, in the exercise of its plenary 
powers over public highways of the City of Portland, to transfer the 
management and control of the bridges and ferries in question from 
the Commission appointed by it to the county, and to determine and 
provide the mode in which the burden of maintaining and keeping 
them in repair shall be borne in the future." 

Third, Rights in Navigable Rivers 
Wholly Within a State 

By a number of decisions the United States Supreme Court 
has estabhshed the law relating to navigable rivers wholly 
within a State. The earlier decisions were made before Con- 
gress passed any law on the subject. 

In the case of Willamette Iron Bridge Co. v. Hatch, 125 
U. S. I, it was held that the provision in the "act for the 
admission of Oregon into the Union," 11 Stat. 383, c. 33, Sec. 



13 

2, that "all the navigable waters of said State shall be com- 
mon highways and forever free, as well to the inhabitants of 
said State as to all other citizens of the United States, with- 
out any tax, duty, impost or toll therefor," does not refer to 
physical obstructions of those waters, but to political regula- 
tions which would hamper the freedom of commerce. 

On page lo, Mr. Justice Bradley, referring to the above 
quotation from the act for the admission of Oregon into the 
Union, said : 

"It is obvious that if the clause in question does prohibit physical 
obstructions and impediments in navigable waters, the State Legis- 
lature itself, in a State where the clause is in force, would not have 
the power to cause or authorize such obstructions to be made without 
the consent of Congress. But it is well settled that the Legislatures 
of such States do have the same power to authorize the erection of 
bridges, dams, etc., in and upon the navigable waters wholly within 
their limits, as have the original States, in reference to which no 
clause exists." 

And on page 12 he said : 

"Until Congress acts, the States have the plenary power supposed, 
yet, when Congress chooses to act, it is not concluded by anything 
that the States, or that individuals by its authority or acquiescence, 
have done, from assuming entire control of the matter, and abating 
any erections that may have been made, and preventing any others 
from being made, except in conformity with such regulations as it 
may impose.' 

This was prior to the Act of Congress of March 3, 1899, 
relating to the construction of bridges, etc., in navigable 
streams. This act has been amended by several acts of 
Congress. 

In the case of Lake Shore & Michigan Ry. Co. v. Ohio, 
165 U. S. 365, the Act of Congress of September 19, 1890, 
was involved. Section 7 of this act provides that it shall be 
unlawful to commence the construction of any bridge, etc., in 
any navigable river, etc., "under any act of the Legislative 
Assembly of any State until the location and plan of such 
bridge or other work have been submitted to or approved by 
the Secretary of War." It was held that said act did not 
deprive a State of authority to bridge such a river, but created 
an additional remedy to prevent such a bridge from interfer- 
ing with commerce. I have not found any act of Congress 



14 

which allows the assent of the State to- be exercised except 
under an act of its Legislative Assembly. 

In Cummings v. Chicago, i88 U. S. 411, it was held that 
under existing legislation the right to erect a structure in a 
navigable river, wholly within the limits of a State, depends 
upon the concurrent or joint assent of the State and National 
Governments acting by their constituted agencies. 

In Montgomery v. Portland, 190 U, S. 89, the case of 
Cummings v. Chicago, supra, was expressly affirmed. On 
page 106, Mr. Justice Harlan said: 

"Upon the authority, then, of Cummings v. City of Chicago and 
the cases therein cited — to which we may add Willamette Bridge Co. 
V. Hatch, 125 U. S. 1 — we hold that, under existing enactments, the 
right of private persons to erect structures in a navigable water of 
the United States that is entirely within the limits of a State, cannot 
be said to be complete and absolute without the concurrent or joint 
assent of both the General and State Governments." 

It therefore appears that so far as a State is concerned 
it must in its sovereign capacity as a State and by its Legis- 
lature give its assent or authority for the construction of a 
bridge over a navigable river wholly within its boundaries. 

I have thus set forth what I believe to be the law in Ore- 
gon on the three subjects, viz. : Eminent Domain, power to 
grant franchises and control of highways, and relating to 
bridges across navigable rivers wholly within a State at the 
time the amendments of 1906 were adopted. 

It is now contended that the amendments of 1906 have 
rendered nugatory and made void and of no effect the law on 
these three subjects, as they existed at that time. This con- 
tention is based on the facts that, by these amendments, the 
people of a municipality are granted the power "to enact and 
amend their charter," although no definition is made of what 
a charter is, and that these amendments give to each city and 
town in Oregon the right tO' exercise these sovereign powers 
equal or superior to^ the State itself, at least within their 
respective corporate limits. 

It has, heretofore, been thought that the exercise of these 
sovereign powers should be granted only after careful consid- 



15 

ration by the Leg-islature, as the representative of the whole 
State and of all of its people, and that no community had, or 
should have, the right tO' exercise, without limitations, these 
powers, which might be used to the detriment of all the rest 
of the State. 

Decisions of the Oregon Supreme Court on the 

Initiative and Referendum Powers to be 

Exercised by a Municipality 

The validity of the amendment of Section i of Article IV 
of the Oregon Constitution was sustained in Kadderly v. Port 
of Portland, 44 Ogn. 118. 

In the case of Stevens v. Benson, 50 Ogn. 269, decided 
September 3, 1907, it was held that said amended Section i 
of Article IV of the Constitution is self-executing. On page 
274 it is said : 

"The Legislature may enact laws to facilitate the enforcement of 
Constitutional provisions that are self-executing, and such laws will 
be obligatory upon the Court when intended by the Legislature to be 
mandatory, so long as they do not curtail the rights reserved or 
exceed the limitations specified therein." 

In the case of State v. Langworthy, 104 Pac. 424 (not 
yet reported in the State Reports), decided October 26, 1909, 
it is said : 

"It is manifest from the provisions of this amendment" (Section 
1 of Article IV) "that it was intended to be self-executing; that is, 
its provisions were designed to become effective without awaiting 
legislative aid. Under such circumstances supplemental laws are not 
a prerequisite to the effectiveness of a Constitutional provision, and 
the people may proceed in accordance therewith until aided by such 
additional enactments as the law-making department of the State 
may provide." 

As neither of these two decisions refer tO' the number or 
percentage of voters necessary to sign an initiative petition, 
and as the Supreme Court declared said Section i self-exe- 
cuting, and as there is no law on the subject, we are left in 
doubt as to the number or percentage of voters necessary to 
sign an initiative petition under that section. Whether the 
words, "Not more than eight per cent of the legal voters" 
should be construed to mean "not less than eight per cent of 



i6 

the legal voters," or whether they mean any number less than 
eight per cent, or any number not exceeding eight per cent, 
has not been decided. Literally, "not more than eight per 
cent" may m.ean one voter or two, or half a dozen. 

In the cases of McKenna v. The City of Portland, 52 Ogn. 
191, and Farrell v. The Port of Portland, 52 Ogn. 582, it was 
held that the amendments of 1906 must be construed together. 

It will be noted that said Section la of Article IV pro- 
vides that : 

"The manner of exercising said powers" (initiative and referen- 
dum), "shall be prescribed by general laws, except that cities and 
towns may provide for the manner of exercising the initiative and 
referendum powers as to their municipal legislation." 

It has been held by the Supreme Court of Oregon that 
the provisions of said Section la, so far as municipal corpora- 
tions are concerned, are not self-executing, in the following 
cases : 

In the case of the Acme Dairy Company v. City of Astoria, 
49 Ogn. 520, the Common Council of Astoria, prior to the 
passage of the law of 1907, amended the charter of the city, 
without action by the legal voters of Astoria, so as to pro- 
vide the manner of exercising the initiative and referendum 
powers by the people. The Supreme Court held that the Com- 
mon Council had such power. In deciding this case Mr. 
Justice Moore, referring to said Section i a of Article IV, said : 

"The right reserved by the Constitutional amendment is not self- 
executing, and cannot be carried into efifect in the absence of a general 
statute prescribing the mode of its exercise." 

In the case of McKenna v. City of Portland, 52 Ogn. 191, 
Mr. Chief Justice Bean, referring to the amendments of 1906, 
on page 194, said : 

"As no provision is made therein for the manner of exercising 
the power thus conferred, some law upon the subject was necessary to 
make it effective, and the law of 1907 was adopted for that purpose." 

It was further held, in that case, that at that time, there 
being no legislation of the City of Portland conflicting with 
the provisions of said law of 1907, the Council of Portland 
having initiated and submitted an amendmient to the charter 



17 

of Portland on its own motion, which was adopted by its 
people, that such charter amendment was properly submitted. 

In the case of Long v. City of Portland, 53 Ogn. 92, Mr. 
Justice Eakin, on page 96, said : 

"Section la of Article IV of the Constitution is not self-executing, 
for the reason that it makes no provision as to its enforcement. It 
only declares or resrves the right, without laying down rules, by 
means of which this right may be given the force of law. (Citing 
cases.) It contains no provisions as to the time and place of filing 
the petition, nor the time when, or manner in which, the law voted 
upon shall take effect." 

In the case of State ex. rel. Bradford v. Portland Raih<t;ay 
Light and Power Company, 107 Pac. 958 (not yet reported 
in the Oregon Reports), Mr. Justice Slater said: 

"The amendment to the Constitution, above quoted, reserves to 
the people of every municipality, city or town the general right of 
referendum, as to municpial legislation, without laying down rules 
by means of which such right may become effective, or be in force; 
and, therefore, it is not self-operative. (Long v, Portland, 98 Pac. 149, 
150.) But the amendment does declare that the manner of exercising 
the power granted shall be prescribed by general laws, except that 
cities and towns may provide for the manner of exercising the same, 
as to their municipal legislation." 

In the case of Kiernan v. City of Portland, 1 1 1 Pac. Rep. 
379, which I shall refer to as "the Kiernan case," decided by 
the Oregon Supreme Court November 2, 191 o, Mr. Justice 
McBride, in his opinion, quotes with approval the decision of 
the Supreme Court in Acme Dairy Company v. City of 
Astoria, supra, that said initiative amendment relating to 
cities is not self-executing. So it may be said to be well 
established that the initiative powers under the amendments 
of 1906 are not self-executing, and require some law, either 
by the Legislature or by the municipality itself, to put the 
same into force or effect. 

It is strange, but true, that neither in the act of 1903, 
relating to initiative petitions under Section i of Article IV 
of the Constitution, nor in the act of 1907, relating to initi- 
ative petitions under said Section i and under said Section la 
of Article IV, was any provision made for the number of sig- 
natures to an initiative petition. Section 13 of the Act of 
1907 provides : 



i8 

"Any person who is a qualified elector of the State of Oregon may- 
sign a petition for the referendum or for the initiative for any 
measure which he is legally entitled to vote upon." 

Section ii of the Act of 1907 provides: 

"Referendum petitions against any ordinance, franchise or resolu- 
tion passed by the City Council shall be signed by not less than ten 
per cent of the voters of said city, and said signatures shall be veri- 
fied in the manner herein provided." 

But there is nothing in the act saying- in what manner the 
signatures shall be verified, nor how the number of legal voters 
shall be determined. It is true that in said Section i of 
Article IV a provision is made for ascertaining the number 
of voters by providing that : 

"The whole number of votes cast for Justice of the Supreme Court 
at the regular election last preceding the filing of any petition for 
the initiative or for the referendum shall be the basis on which the 
number of legal voters necessary to sign such petition shall be 
counted." 

But this applies only to initiative and referendum petitions 
for amendments of the Constitution or on legislation by the 
people of the whole State. 

In said Section la of Article IV it is provided: 

"The initiative and referendum powers reserved to the people by 
this Constitution are hereby further reserved to the legal voters 
of every municipality and district, as to all local, special and munici- 
pal legislation, of every character, in or for their respective munici- 
palities and districts. The manner of exercising said powers shall 
be prescribed by general laws, except that cities and towns may pro- 
vide for the manner of exercising the initiative and referendum powers 
as to their municipal legislation." 

So it will be seen that while the initiative and referendum 
powers are granted to the people of a municipality, the man- 
ner O'i the exercise of these powers is not provided in Section 
I of Article IV, and is of no force in regard to initiative and 
referendum petitions under Section la until there be appro- 
priate legislation on the subject. 

Until appropriate legislation is had providing how many 
voters shall sign an initiative petition under Section i of 
Article IV, and also as regards the number of signatures 
to an initiative petition under Section la, or until the 



19 

Supreme Court shall make some decision on this question, 
this question is unsettled. The Supreme Court, of course, may- 
decide that no more than eight per cent, and not more than 
fifteen per cent means not less than eight per cent, and not less 
than fifteen per cent, respectively, or it may hold that any 
number less than such percentage would be sufficient under 
an initiative petition. But as the Supreme Court has held, in 
the cases I have cited, that Section la of Article IV is not 
self -executing, it would seem that the logical result would be 
that no initiative petition could be filed until there be some law 
of the State or some ordinance adopted by a city, or by 
amendment of its charter, providing the percentage of voters 
necessary to sign an initiative petition under said Section la, 
and that the provision, in said Section la, that not more than 
fifteen per cent of the legal voters may be required to pro- 
pose any measure, by the initiative, in any city or town, is 
not a determination of the number of the legal voters neces- 
sary to sign such an initiative petition, but is a limitation on 
the number or percentage of voters which shall be required by 
any general law of the State or by an ordinance of a city or 
town on the subject, i. e., that such a law or ordinance shall 
not require "more than fifteen per cent" (of the legal voters) 
"to propose any measure, by the initiative, in any city or town." 

In this connection, attention is called to the decision in 
the case of Long v. City of Portland, supra, in which Mr. 
Justice Eakin, on page 96, said : 

"Section la of Article IV of the Constitution is not self-executing, 
for the reason that it makes no provision as to its enforcement. It 
only declares or reserves the right, without laying down rules, by 
which this right may be given the force of law. (Citing cases.) It 
contains no provisions as to the time and place of filing the petition, 
nor the time when, or the manner in which, the law voted upon shall 
take efifect." 

What is known as the McNary Ordinance, adopted by the 
Council of Portland, has made provision for the filing of ini- 
tiative and referendum petitions in the City of Portland. Sec- 
tion 9 of this ordinance provides that an initiative petition, as 
well as a referendum petition 

"Shall be signed by a number of legal voters equal to fifteen per 
cent of the votes cast at the last preceding election." 



20 

It should be borne in mind that said Section la provides 
that "not more than ten per cent of the legal voters may be 
required to order a referendum." So there is a conflict 
between the McNary ordinance and the Constitution, although 
the provisions of Section ii of the Act of 1907 may apply, 
which provides that "referendum petitions against any ordi- 
nance, franchise or resolution passed by a City Council shall 
be signed by not less than ten per cent of the voters of said 
city." The Supreme Court might hold that Portland, having 
adopted the McNary ordinance, the void provision would not 
be enforced under the Act of 1907. 

Section 5 of said McNary ordinance provides that the 
Auditor of Portland "shall verify the signatures and voting 
qualifications of the persons signing the same" (referendum 
and initiative petitions), "by reference to the registration 
books in the office of the County Clerk of Multnomah County." 

This is a recognition that the whole number of votes cast 
for Justice of the Supreme Court at the general election last 
preceding the filing of any petition, does not apply to said 
Section la of Article IV. 

The Supreme Court of Oregon has also passed on the ques- 
tion as to the rights of the Legislature and of the people of a 
municipal corporation to alter, amend or repeal its charter or 
act of incorporation. Without such decisions, it would appear 
that it was the intention of the people adopting the amend- 
ment of Section 2 of Article XI of the Constitution, that the 
Legislature could not in any way enact, amend or repeal the 
charter of any municipality in the State of Oregon. Earlier 
cases so decided. 

In Acme Dairy Company v. City of Astoria, supra, Mr. 
Justice Moore, referring to^ Section 2 of Article XI, as 
amended, said : 

"It will thus be seen that this change in the organic law deprives 
the Legislative Assembly of all authority to enact, amend or repeal 
any charter of a city or town, the legal voters of which reserve to 
themselves the exercise of all such powers, except the right of repeal." 

In City of Eugene v. Willamette Valley Co., 52 Ogn. 490, 
Mr. Justice Moore, referring to said Section 2 of Article XI, 
as amended, said : 



21 

"It will thus be seen that the Legislative Assembly has been 
deprived of the power specified, which is reserved to, and may be 
exercised by the legal voters of a city or town. As the Legislature 
could, heretofore, have changed a municipal charter or altered any 
part of it, except that vested rights could not be impaired or destroyed, 
it would seem necessarily to follow that, under the amended clause 
of the Organic Act quoted, the qualified voters of every town and 
city possessed the same measure of power." 

In Farrell v. The Port of Portland, supra, Mr. Justice Bean, 
referring to the amendments of 1906, said : 

"The manifest purpose, so far as it concerns the question now 
under consideration, was to take from the Legislature and vest in 
the people the power to amend municipal charters and acts govern- 
ing and defining the powers and duties of all municipal corporations." 

In Long V. City of Portland, supra, it was held that Sec- 
tion II of the Act of 1907, which provides that no city ordi- 
nance shall take effect and become operative until thirty days 
after its passage by the Council and approval by the Mayor, 
unless the same shall be passed over his veto, and in that case 
it shall not take effect and become operative until thirty days 
after such final passage, in effect, amends the charter of the 
City of Portland, for the reason that the right of the referen- 
dum is reserved to the people of the city regardless of any 
provisions of its charter, and that this right is superior to the 
charter, and that the amendments of 1906 and said Section 11 
of the Act of 1907, to give the referendum force, did amend 
the charter of the City of Portland. 

As I have set forth in the beginning, that, having no 
established precedents in these innovations by the initiative 
and referendum powers in the Constitution, it is difficult to 
make them workable. It is somewhat like navigating a ship 
in the open sea without chart, compass 6r chronometer. • It 
is true that under such circumstances a skillful mariner, with 
proper instruments, by observations of the sun, moon and 
stars, might navigate, but it would be difficult, and the liability 
to make errors would be great. It is a hard matter for any 
Court, without precedent, to take into account what may be 
the effect of a decision or opinion in one case on other cases 
or matters not before decided by any Court. And this is 
largely the position the Oregon Courts find themselves in. 
When the Supreme Court found what the effect M^ould be in 



22 



holding- that the Legislature could not enact, amend or repeal 
any municipal charter in the State, and that a municipality 
might attempt to exercise powers in derogation of the sover- 
eignty of the State itself, it became a serious matter. As a 
result we have, the somewhat remarkable decision, in the case 
of Straw V. Harris, 54 Ogn. 424, decided August 24, 1909. 

The facts in this case are as follows : 

The Legislature enacted a law at its session in 1909 
entitled : 

"An act to provide for incorporation under general law of ports in 
counties bordering upon bays or rivers navigable from the sea or 
containing bays or rivers navigable from the sea, and to provide for 
the manner of incorporating such ports and defining the powers of 
ports so incorporated, and declaring an emergency." 

Under the provisions of this act the Port of Coos Bay was 
incorporated, which included within its boundaries the incor- 
porated towns of North Bend, Marshlield, East Marshfield 
and Empire City, in one of which a majority voted against 
the organization of the Port. The principal question in this 
case was the constitutionality of said Legislative Act, under 
which the Port was incorporated, as it was contended that 
the effect thereof was not only to amend, but to repeal parts 
of the charters of the municipalities thus included, in viola- 
tion of Section 2 of Article XI, as amended, of the Consti- 
tution of Oregon. 

Two' main points were decided in Straw v. Harris: 

First. That under the initiative and referendum amend- 
ments of the Constitution there are two separate and distinct 
law-m.aking bodies, each equal, viz. : The Legislature and the 
people. 

Second. That the State has not surrendered its sover- 
eignty to the municipalities to the extent that the State has 
lost control of the municipalities. 

In the opinion, Mr. Justice King, on page 431, said: 

"By the adoption of the initiative and referendum into our Con- 
stitution, the legislative department of the State is divided into two 
separate and distinct law-making bodies. There remains, however, 
as formerly, but one legislative department of the State. It operates, 



23 

it is true, differently than before — one method by the enactment of 
laws directly, through that source of all legislative pov/er, the 
people; and the other, as formerly, by their representatives — but the 
change this wrought neither gives to nor takes from the Legislative 
Assembly the power to enact or repeal any law, except in such man- 
ner and to such extent as may therein be expressly stated. Nor do 
we understand that it was ever intended that it should do so. The 
powers thus reserved to the people merely took from the Legislature 
the exclusive right to enact laws, at the same time, leaving it a co-or- 
dinate legislative body with them. This dual system of making and 
unmaking laws has become the settled policy of the State, and so rec- 
ognized by decisions upon the subject. Kadderly v. Portland, 44 Ogn. 
118 (74 Pac. 710; 75 Pac. 222); Oregon v. Pac. Sta. T. & T. Co., 53 
Ogn. 162 (99 Pac. 427). 

"Subject to the exceptions enumerated in the Constitution, as 
amended, either branch of the legislative department, whether the 
people, or their representatives, may enact any law, and may even 
repeal any act passed by the other. One of these exceptions relates 
to the invoking of the referendum and the other to the provision in 
the amendment quoted, which takes from the Legislature the 
right to create corporations by special laws; otherwise there is no 
distinction." 

And on page 437, Mr. Justice King further said : 

"The State, therefore, regardless of any declarations in its Consti- 
tution to the contrary, may at any time revise, amend, or even repeal 
any or all of the charters within it, subject, of course, to vested rights 
and limitations otherwise provided by our fundamental laws. This, 
under the Constitution as it now stands, may be done by the Legis- 
lature through general laws only, and the same authority may be 
invoked by the people through the initiative by either general or 
special enactments; only the Legislature being inhibited from adopt- 
ing the latter method." 

These statements of the law hardly agree with the state- 
ment later in the opinion that the State has not surrendered 
to the municipalities its control over them. 

Instead of two law-making bodies there would seem to be 
three, or, possibly, four: 

First. The Legislature, 

Second. The people of the whole State, 

Third. The people of a municipality, 

Fourth. The Common Council or Commissioners of a 
municipality. 

The holding that the people and Legislature may each 
"enact any law and may even repeal any act passed by the 



24 

other," shows to what a dangerous condition these initiative 
amendments of the Constitution have brought the State of 
Oregon. It is a condition similar to that which would occur 
if the sole legislative body of a State was composed of two 
houses which did not have to concur to enact a law, and each 
could enact laws to the exclusion of the other, "and even repeal 
any act passed by the other." 

Suppose that in the State of Oregon two antagonistic acts 
were passed, one by the Legislature, the other by the people, 
and these two acts when into effect the same day. What 
would be the result? It would be like the celebrated case of 
an irresistible force meeting an immovable body. Will not 
the Legislature become as useless as a vermiform appendix is 
to a human being? It may have some functions, but it is 
apparently a menace. Would it not be well to cut it out before 
it becomes dangerous ? 

In the case of Straw v. Harris, supra, on page 436, Mr. 
Justice King also said : 

"True, the language used in the amendments considered would 
appear to give to incorporated cities the exclusive control and man- 
agement of their own affairs, even to the extent, if desired, of legis- 
lating within their borders without limit, to the exclusion of the State. 
But, as stated, these provisions must be construed in connection with 
others of our fundamental laws, which can but lead to the conclusion 
above announced; and whatever may be the literal import of the 
amendments it cannot be held that the State has surrendered its 
sovereignty to the municipalities to the extent that it must be deemed 
to have perpetually lost control over them. This no State can do. 
The logical sequence of a judicial interpretation to such effect would 
amount to a recognition of a State's independent right of dissolution. 
It would brt lead to sovereigntial suicide. It would result in the 
creation of States within the State, and eventually in the surrender 
of all State sovereignty — all of which is expressly inhibited by Article 
IV, Section 3, of our National Constitution." 

The part of Section 3 of Article IV of the Constitution of 
the United States referred tO' by Mr. Justice King is as fol- 
lows, viz. : 

"No new State shall be formed or erected within the jurisdiction 
of any other State." 

It is to be regretted that the opinion merely stated a gen- 
eral principle without going into details or citing instances, 



25 

e. g., the exercise of the right of Eminent Domain ; or the con- 
trol of streets and other highways, or the granting of fran- 
chises under powers given to a municipahty by initiative pro- 
ceedings of its legal voters, which it did not have before; or 
whether a port could not, by initiative proceedings, give itself 
all the powers of a city, and by being larger than a city, and 
in the case of the Port of Coos Bay, including four towns, 
take to itself and exercise supremacy over any and all cities 
and towns within the boundaries of a port. It must be borne 
in mind that in the case of Farrell v. Port of Portland, supra, 
it was held that the voters of a port could amend its charter or 
the act of its incorporation, for it is a municipal corporation, 
and no limitation is placed on its powers or right to amend 
its charter and give itself additional powers. The amendment 
of its charter, in question in that case, gave the Port of Port- 
land largely increased powers. As it includes all of the City 
of Portland, and more, may it not practically, by initiative 
amendments, make itself superior to the City of Portland and 
grant franchises, and exercise the right of Eminent Domain 
in the City of Portland superior to the latter. There is no 
limitation on the power of any city, town, port or other 
municipal corporation to give itself additional powers, except- 
ing that in Straw v. Harris it was held a municipality could 
not exercise a sovereignty superior tO' the State of Oregon. 
And it was also held that the Legislature could take away this 
power. But the Port could give itself the power again at 
the next general election, or at a special election, which could 
be held by the Commissioners of the Port of Portland amend- 
ing its charter in a manner similar to that used by the City 
of Astoria, as appears in the case of Acme Dairy Company v. 
Astoria, supra, and that used by the Port of Portland, as 
appears in the case of Farrell v. Port of Portland, supra. 

Moreover, in Straw v. Harris, it was held that the rights 
of a port are superior to that of a city or town. On pages 
435-436 in the decision of the Oregon Supreme Court, Mr. 
Justice King said : 

"We find that the Constitution, by permitting, through general 
laws, the exercise by municipalities of greater and more extensive 
prerogatives for other and diflferent purposes, including the forma- 
tion of ports, has thereby delegated to such larger districts the right 



26 

to take such steps as may be essential to the carrying out of the gen- 
eral purpose and object of their creation. The exercise of this privi- 
lege does not necessitate the elimination of the city governments, nor 
of any substantial part of them, within any of the territory included; 
nor does it in any respect interfere with the general object or purpose 
for which the included corporations were established. It may have 
the effect, it is true, of taking from them the control of wharves and 
docks, as well as some other privileges, whenever and wherever the 
exercise thereof becomes inconsistent with the object for which the 
port is incorporated." 

But what would take place if the Port of Portland should 
give itself rights and powers superior toi those of the City 
of Portland? Or if the latter should attempt to amend its 
charter so as to make it equal tO' or superior to the Port of 
Portland? Apparently each has the right to give itself all 
sovereign powers as against the other. It is only when a 
municipality interferes with the sovereignty of the State that 
the State can interfere. Just what such an interference is 
does not yet appear. Apparently it is not by a municipality 
giving- itself powers of Eminent Domain, or the power to 
grant franchises over the highways of the State, or tO' build 
bridges across a navigable river without the consent of the 
State. 

There have been but two later decisions only on this ques- 
tion by the Supreme Court of Oregon. 

One of these decisions is City of McMinnville v. Howen- 
stine, 109 Pac. Rep. 81 (not yet reported in the Oregon 
Reports), decided June 7, 1910. 

In this case the City of McMinnville, by initiative amend- 
ment of its charter, gave itself the right to appropriate, under 
Eminent Domain, lands outside of the city for water works. 
Two opinions were written in this case. One held that under 
the amendments of 1906 the legal voters of a city or town 
might give it the right to exercise the power of Eminent 
Domain within and without its limits. And so the City of 
McMinniville might give itself these sovereign powers with- 
out authority from the Legislature. And that the right tO' 
enact or amend the charter of a city or town gives it the 
right, by amendment of its charter, to give itself the sovereign 
right to appropriate under the powers of Eminent Domain, 
lands to be used by such city or town under its functions as 



27 

a proprietor. The other opinion dissented from the first 
opinion, but held that under a general law of the Oregon 
Legislature, passed in 1891, prior to the adoption of any ini- 
tiative amendment to the Oregon Constitution, the City of 
McMinnville had the right to appropriate lands for water 
works outside of its corporate limits. The effect of each of 
the two decisions was that the land could be appropriated. 
As to the views of the majority of the Supreme Court on this 
question, we are left in doubt, for the majority of the Court 
announced that they "concur in the conclusion reached in each 
of the foregoing opinions," the conclusions being the same. 

The other case is that of Kiernan v. City of Portland et al., 
decided November 2, 1910, iii Pac. Rep. 379. The facts in 
this case are that, by amendment of its charter under the 
amendments of 1906, the City of Portland gave itself the 
power and right to construct a bridge over the Willamette 
River, a navigable river wholly within the State of Oregon, 
without being specifically authorized thereto by the Legisla- 
ture. There were two opinions rendered, the majority of the 
Court evidently concurring in the result, without announce- 
ment. In one of these opinions it is said : 

"The people of this State by the Constitutional amendment, here- 
tofore quoted, have seen fit to confer upon municipal corporations 
the right to enact their own charters, the only limitation upon that 
right being that such charters shall not conflict with the Constitution 
or the criminal laws of this State. We take it, therefore, that within 
the limits of the municipality, and for those purposes which are purely 
municipal, the City of Portland may include in its charter by amend- 
ment any provision or right that the Legislature might have granted 
before the Constitution was so amended. This being so, there is fair 
ground for the contention that the city may, by amendment to its 
charter, obtain the right to locate a public bridge over the Willamette 
River at any point where such river is exclusively within the munici- 
pal boundaries, which is the case here." 

In the other opinion it is said : 

"Section IIS]^' (passed pursuant to a Constitutional amendment) 
delegates to cities all the sovereignty of the State within their munici- 
pal boundaries, so far as that sovereignty relates to matters of purely 
municipal concern. Such grants of sovereignty, however, may be 
recalled by the power conferring them. (Straw v. Harris, 54 Ogn. 
424), and this power of recall serves to prevent the abuse of the privi- 
leges delegated." 



28 

But is constructing a bridg-e over a navigable river a mat- 
ter of "purely municipal concern?" Is it not a concern of the 
whole of Oregon and all of its people? 

Section ii8>4, referred to in the latter opinion, is an initia- 
tive amendment of its charter adopted by the voters of the City 
of Portland June 7, 1909, authorizing the construction of what 
is known as the "Broadway Street Bridge." It authorized 
the issue of $2,000,000.00 in bonds for the construction of the 
bridge over the Willamette River and empowered the City 
of Portland to appropriate and condemn all property, includ- 
ing franchises, which the "Executive Board, or its successors, 
may require to carry into effect this Section" (118^). 

In each of these opinions it is said that Section 76 of the 
Charter of Portland, passed by the Legislature in 1903, gave 
the povt^er to the City of Portland to construct bridges over 
the Willamette River. 

Section ^6 of the Portland charter provides that: 

"The Council of the City of Portland shall, at all times, under the 
limitations herein set out have power to provide ***** fQ,- the 
acquisition, ownership, construction and maintenance of * * * * * 
bridges and ferries and such other public utilities as the Council may 
designate; provided, however, save as otherwise prescribed in this 
charter, no contract or agreement for the purchase, condemnation, 
ownership, construction or operation by the city, of any public utility 
shall be entered into by the Council without first submitting such 
proposed contract or agreement to the qualified voters of the city, in 
accordance with the provisions of this article." 

While it might otherwise appear that the initiative amend- 
ment 118^ of the Portland charter does not refer to Section 
76 of that charter, but is a distinct addition to the charter and 
the right to build this bridge is wholly under said Section 
118^, and was not exercised under said Section 76 or under 
any other amendment thereof, the decision of the Supreme 
Court apparently determines the matter, althoug-li prior to 
this decision there was some question as to whether the city 
had more than a bare recognition of a right tO' construct 
bridges, for there is no- grant under the charter of the City 
of Portland or by an act of the Legislature, prior to the 
passage of the amendment of the Portland charter, complained 
of in the Kiernan case, which authorized in express terms the 



29 

construction of such a bridge across the Willamette River, it 
being a navigable river, or for creating a bonded or other 
indebtedness for the construction of such a bridge. 

The grant of a right without power to exercise it cannot be 
enforced. (W. U. T. Co. v. Penn. R. R. Co., 195 U. S. 540, 
574J 

Limitations of a City's Indebtedness 

There is one important matter which has not yet come 
before the Oregon Supreme Court for decision. At the time 
of the adoption of the Oregon Constitution the necessity had 
become very apparent of limiting the amount of indebtedness 
that a city or town should contract. The Constitution or laws 
of many States places a limit on the indebtedness of a munici- 
pality, in some instances by limiting it to a percentage of the 
value of assessed property. 

Section 5 of Article XI of the Constitution of Oregon is 
as follows : 

"Acts of Legislative Assembly incorporating towns and cities shall 
restrict their powers of taxation, borrowing money, contracting debts, 
and loaning their credit." 

Probably, when provision is made under the amendments 
of 1906, allowing cities and towns to be incorporated, which 
are not now in existence, this clause will not apply to them, 
for the reason that they are not incorporated by an act of 
the Legislature. 

But the question arises in cities and towns which were 
incorporated by special charters by the Legislature, and were 
in existence at the time of the adoption of the initiative amend- 
ments of 1906, whether this Section 5 of Article XI is repealed 
b}^ implication by the amendment of Section 2 of Article XI 
of the Constitution. It would seem, as a matter of law, that 
said Section 5 of Article XI is a limitation upon the power of 
a city to contract indebtedness where such a provision was in 
its charter at the time of the adoption of the initiative amend- 
ments of 1906, and that the people of such a city or town 
could not repeal this by initiative. The legal voters of the 
City of Portland appear tO' have acted on the assumption that 



30 

this Section 5 of Article XI was repealed by the amendments 
of 1906, or that by amendment of its charter by the people 
of Portland, this limitation would be amended or repealed. 

It is but additional evidence showing the imprudence of 
initiative measures when such a question is left in doubt. 

The Effect of the Kieman Case 

If these two opinions in the Kiernan case are those of the 
whole Supreme Court of Oregon then it may be said that, 
under the amendments of 1906, a city may, by initiative amend- 
ment of its charter, give itself the right to exercise, within 
its corporate limits, the power of Eminent Domain, and to 
construct bridges and other obstructions in a navigable river 
wholly within the State without authority from the Legisla- 
ture or from the people of the rest of the State who may be 
affected thereby, and without the sanction of Congress. 

The main points decided in the Kiernan case are, that the 
power to construct bridges was given by the Legislature by 
Section 76 of Portland's charter, and that "there is fair ground 
for the contention that the city may, by amendment of its 
charter, obtain the right to erect a public bridge over the 
Willamette River at any point where such river is exclusively 
within the municipal boundaries," and that the "City of Port- 
land may include in its charter, by amendment, any provision 
or right that the Legislature might have granted before the 
Constitution was so amended," and that the construction of 
a bridge over the Willamette River is "purely municipal," 
and further, that a taxpayer cannot raise the question as to 
whether such a bridge is against the acts of Congress relating 
to navigable streams. 

What will the Supreme Court of the United States say 
as tO' the right of the City of Portland to build such a bridge, 
considering the Act of Congress of September 19, 1890? 

If Portland should cause a bridge to be erected at each 
street, or most of the streets, abutting on the Willamette River 
it would practically confiscate all deep water front on the 
Willamette River as far south as the rapids at the mouth of 
the Clackamas River, and be of great detriment to the people 
of the Willamette Valley outside of Portland and prejudicial 



31 

to the rights of the cities of Oswego, Oregon City, Salem, 
Albany, Corvallis and Eugene. 

But what will the Portland people say if a city or town 
between Portland and the mouth of the Willamette River 
should erect enough bridges practically to interfere with, or 
prevent ships coming to Portland? It might be desired, by 
owners of properties along Columbia slough, to have this 
done and make all shipping use that slough, when it is deep- 
ened by dredging, to the exclusion of the harbor at Portland. 

In one of the opinions in the Kiernan case, referring to 
the right of a city to erect bridges over a navigable river, it 
is said : 

"Such grants of sovereignty, however, may be recalled by the 
power conferring them (Straw v. Harris, 54 Ogn. 424), and this power 
of recall serves to prevent the abuse of the privileges delegated." 

But could such a recall prevent the abuse after the bridges 
were erected? Such a law could not be a special one. It 
would have to be a general one, as was decided in Strazu v. 
Harris. It is possible, at least, that a city, under the Constitu- 
tion of the United States, could have a perpetual injunction 
from the United States Courts against the State's officers, pre- 
venting them from removing or interfering with such bridges 
after they were constructed. The same doctrine would apply 
if the recall of the power to build bridges was done under 
amendment of the Oregon Constitution by the people. In 
such a case the only remedy appears tO' be that Congress could 
pass a law providing for the removal of all bridges in the 
Willamette River. That Congress has such power was held 
in Willamette Iron Bridge Co. v. Hatch, 125 U. S. i, and in 
subsequent cases. 

Granting Franchises under Amendment of 
a City's Charter 

The Supreme Court has not passed on the question as to 
whether a city can, by amendment of its charter, give itself 
the right to grant franchises not authorized under its charter 
as granted by the Legislature. It would seem that this power 
or right followed, as a necessary sequence, from the two opin- 
ions in the Kiernan case, and thus a city can be authorized 
by its voters to grant franchises with the same powers as the 
Legislature might have given before these amendments to 



32 

the Constitution, which includes perpetual and exclusive fran- 
chises. {Parkhurst v. Capital City Ry. Co., 23 Ogn. 471.) 

Such franchises when granted by a city and accepted by 
the grantee could not be revoked by the Legislature or by the 
people. They would be protected by Section 10 of Article I, 
and Section i of the Fourteenth Amendment of the Constitu- 
tion of the United States, although the power of cities to 
grant future franchises of that kind could be revoked. 

This but illustrates again the danger of amending the 
Oregon Constitution as was done by the amendments of 1906, 
and the troubles which arise from amending the Constitution 
by initiative proceedings, and having no regard for precedents 
or established law, either common or statutory. 

Exercise of Powers of Eminent Domain 

The exercise of the sovereign powers of Eminent Domain 
by a municipality, granted by its own initiative amendment 
of its charter, has not yet been passed upon by the Oregon 
Supreme Court, although there are obiter dicta in several cases, 
including McMinnville v. Howenstine, supra, and Kiernan v. 
The City of Portland, supra, on the subject. 

In one of the opinions in the McMinnville case there is 
dictum, at least, to^ the effect that a city can amend its charter 
so as to give itself the right to appropriate property situated 
as well without as within its limits. And in one of the 
opinions in the Kiernan case there is dictum, at least, to the 
effect that a city can amend its charter so as to give itself the 
right to appropriate property within its limits. 

As there appears to be no limit to this right, until the 
Legislature passes a general law on the subject, as decided 
in Strazv v. Harris, or the Constitution is amended, it would 
seem that the City of Salem might, by amendment of its 
charter, condemn or appropriate any of the State's buildings 
and grounds within its limits, as nov/ or hereafter constructed, 
including the State Capitol. Of course the Legislature, by a 
general law, might recover any of these buildings or grounds 
by condemnatory proceedings. As to whether the people of 



33 

Salem could repeal the law of the Legislature, as indicated in 
Straw V. Harris, has not yet been decided. 

If a municipality can give itself the right to condemn 
property outside its limits we may well consider what would 
be the effect if one municipality tried to appropriate the prop- 
erty of another, for, while it is the law that, without previous 
authority so to do, one corporation, public or private, cannot 
appropriate property already devoted to another public use, a 
municipality might give itself this power, under these initiative 
amendments of 1906. 



What is a Charter ? 

Section 2 of Article XI, as amended, of the Oregon 
Constitution provides that the legal voters may "enact and 
amend their charter." 

What is a charter? In Oregon, prior to these amendments, 
there were as many charters as there were cities and towns, 
and no two charters alike. Some of them gave the right to 
exercise, in a limited way, the power of Eminent Domain, and 
to grant franchises, some did not. In the use in statutes, wills, 
conveyances, etc., of technical words they are supposed to be 
used according to their legal meaning. 

At the time these initiative amendments of 1906 were 
adopted, some of the legal definitions of a municipal charter 
were as follows : 

"An Act of Parliament, of Congress or of a State Legislature, 
creating a corporation, is called the charter of the corporation." 
Abbott's Law Dictionary. 

"A municipal charter can emanate only from sovereign power, 
which alone can delegate faculties and functions of government. In 
England it may be granted by the King or by Parliament; in the 
United States it is solely an act of sovereign legislative power." 
28 Cyclopedia of Law and Procedure, 120. 

In Cooley on. Constitiitioiial Limitations, page *i9i, it 
is said : 

"The people of the municipalities, however, do not define for them- 
selves their own rights, privileges, and powers. * * * The 
municipalities must look to the State for such charters of government 



34 

as the Legislature shall see fit to provide; and they cannot prescribe 
for themselves the details, though they have a right to expect that 
those charters will be granted with a recognition of the general prin- 
ciples with which we are familiar. The charter, or the general law 
under which they exercise their powers, is their Constitution, in which 
they must be able to show authority for the acts they assume to 
perform. They have no inherent jurisdiction to make laws or adopt 
regulations of government; they are governments of enumerated 
powers, acting by a delegated authority; so that while the State Legis- 
lature may exercise such powers of government coming within a 
proper designation of legislative power as are not expressly or 
impliedly prohibited, the local authorities can exercise those only 
which are expressly or impliedly conferred, and subject to such regu- 
lations or restrictions as are annexed to the grant." 

And in Cooky on Constitutional Limitations, at pages 
*I94, *I9S, it is said: 

"The powers of these corporations (municipal corporations) are 
either express or implied. The former are those which the legislative 
act under which they exist confers in express terms; the latter are such 
as are necessary in order to carry into effect those expressly granted, 
and which must, therefore, be presumed to have been within the inten- 
tion of the legislative grant. Certain powers are also incidental to 
corporations, and will be possessed unless expressly or by implication 
prohibited. Of these an English writer has said: 'A municipal cor- 
poration has at common law few powers beyond those of electing, 
governing, and removing its members, and regulating its franchises 
and property. The power of its governing officers can only extend to 
the administration of the by-laws and other ordinances by which the 
body is regulated.' But without being expressly empowered so to do, 
they may sue and be sued; may have a common seal; may purchase 
and hold lands and other property for corporate purposes, and convey 
the same; may make by-laws whenever necessary to accomplish the 
design of the incorporation, and enforce the same by penalties; and 
may enter into contracts to effectuate the corporate purposes. Except 
as to these incidental powers, and which need not be, though they 
usually are, mentioned in the charter, the charter itself, or the general 
law under which they exist, is the measure of the authority to be 
exercised. 

"And the general disposition of the Courts in this country has been 
to confine municipalities within the limits that a strict construction of 
the grants of powers in their charters will assign to them; thus apply- 
ing substantially the same rule that is applied to charters of private 
incorporations. The reasonable presumption that the State has 
granted in clear and unmistakable terms all it has designed to grant 
at all." 

In proposing and adopting the amendments of 1906, the 
voters of the State seem to have assumed that to specify that 
the legal voters of a city or town could enact or amend their 



35 

charter was sufficient. This was merely the grant of a power 
by name, without providing- of what such power consists, for 
there is no definition, in Section 2 of Article XI, as amended, 
of what a charter is. 

In / Abbott on Municipal Corporations, page 40, it is said: 

"The power to alter, amend, or repeal the charter of a public 
corporation must necessarily exist without limitation in the sovereign, 
otherwise there would be 'numerous petty governments existing within 
the State, forming a part of it, but independent of the central of the 
sovereign power.' " 

But in Oregon, by the amendments of 1906, is this sove- 
reign power lodged in the legal voters of the respective 
municipalities ? By the amendment of Section 2 of Article XI 
of its Constitution, it took from the Legislature the right 
to "enact, amend, or repeal any charter or act of incorporation 
for any municipality, city or town," and gave the right to enact 
or amend their charter to their legal voters, "subject only to 
the Constitution and criminal laws of the State of Oregon?" 
In the opinion in Straw v. Harris it is said oi said amendment 
and of said Section la of Article IV: 

"The language used in these amendments considered would appear 
to give to incorporated cities the exclusive control and management 
of their own afifairs, even to the extent, if desired, of legislating within 
their borders, without limit, to the exclusion of the State." 

It can hardl)^ be doubted that this is exactly what the 
proposers of these amendments, and, presumably, what the 
majority of the voters in 1906 intended in adopting these 
amendments. And this was done apparently without a knowl- 
edge of the primary principles of constitutional law or of the 
law relating tO' municipalities. 

In order to arrive at this conclusion, however, the Supreme 
Court must have overlooked its decision in the case of Hood 
River Lumbering Company v. Wasco County, 35 Oregon, 498. 
This was a case where the constitutionality of a statute was 
involved, v/hich did not provide for notice to the non-consent- 
ing owner of proceedings for appropriation of his property 
and gave him no opportunity to be heard as a matter of right. 
The Court held the law unconstitutional on this ground. On 
page 508 Mr. Justice Bean said : 

"A notice not provided for by law is, in truth, no notice at all, and 
it is the province of the Legislature, and not of the Courts, to enact 



36 

laws which shall prescribe the notice that brings parties into Court. 
If no notice is provided by law, no effective notice can be given, since 
a notice not authorized can have no legal force, and, without a notice 
authorized by some valid statute, there can be no due process of law. 
The Courts have no right to supply the omission by interpolating 
provisions, for it is their duty to give effect to the statutes as they are 
written, and they cannot amend imperfect enactments." 

As a matter of strict constitutional law, under the amend- 
ments of 1906, can any Oregon municipality give to itself the 
right to exercise any sovereign powers not granted to it by its 
charter from the Legislature? Must not the right to exercise 
these sovereign powers be granted by amendment of the Con- 
stitution made by the legal voters of the whole State of Oregon, 
not only to municipal corporations in existence when these 
amendments were adopted, but tO' those created thereafter? 
And thus prevent the abuse of the exercise of these powers 
by municipalities, to the prejudice of the rights of the rest of 
the people of the State. 

And thus it must have come that the Oregon Supreme 
Court found itself in a position where it must either hold said 
initiative amendments of 1906, relating to municipalities, void 
for uncertainty or relating only to its business affairs, or 
otherwise, in order to make them workable and not "in viola- 
tion of our fundamental law," and to amend them by judicial 
decisions, or, in the language of the Court, to "read into them" 
appropriate words and phrases and limitations. And so we 
have the decision in Straw v. Harris. But that case does not 
settle all the questions that must arise under these initiative 
amendments, which themselves "are in violation of our funda- 
mental law." 

I have treated of some, only, of the questions involved in 
these initiative amendments to- the Oregon Constitution relat- 
ing to the amendments of charters of municipal corporations. 
I have the highest respect for the Oregon Supreme Court and 
for the learned lawyers who' are its Justices. They have had 
legal problems that are not easy tO' solve in the cases involving 
these amendments of the Oregon Constitution which they have 
had to decide. Whatever may be their views, or those of the 
Oregon Bar Association, as to the advisability of adopting 
these amendments, they are parts of the Oregon Constitution 
and must be respected accordingly. 



37 

I have endeavored, in this address, to show the danger and 
impracticability of the people making radical changes in a 
State Constitution without considering, and in contravention 
of the history, the principles, and the fundamental law of a 
republican form of government and in opposition to the tradi- 
tions and to the genius of our institutions. 



Appendix A 

Section i of Article IV, as amended, of Oregon Consti- 
tution is as follows : 

" § 1. The legislative authority of the State shall be vested in a 
Legislative Assembly, consisting of a Senate and House of Repre- 
sentatives, but the people reserve to themselves power to propose 
laws and amendments to the Constitution and to enact or reject the 
same at the polls, independent of the Legislative Assembly, and also 
reserve power at their own option to approve or reject at the polls any 
act of the Legislative Assembly. The first power reserved by the 
people is the initiative, and not more than eight per cent of the legal 
voters shall be required to propose any measure by such petition, and 
every such petition shall include the full text of the measure so pro- 
posed. Initiative petitions shall be filed with the Secretary of State 
not less than four months before the election at which they are to be 
voted upon. The second power is the referendum, and it may be 
ordered (except as to laws necessary for the immediate preservation 
of the public peace, health, or safety), either by the petition signed by 
five per cent of the legal voters, or by the Legislative Assembly, as 
other bills are enacted. Referendum petitions shall be filed with the 
Secretary of State not more than ninety days after the final adjourn- 
ment of the session of the Legislative Assembly which passed the bill 
on which the referendum is demanded. The veto power of the 
Governor shall not extend to measures referred to the people. All 
elections on measures referred to the people of the State shall be had 
at the biennial regular general elections, except when the Legislative 
Assembly shall order a special election. Any measure referred to the 
people shall take effect and become the law when it is approved by a 
majority of the votes cast thereon, and not otherwise. The style of 
all bills shall be: 'Be it enacted by the people of the State of Oregon.' 
This section shall not be construed to deprive any member of the 
LegislatiA^e Assembly of the right to introduce any measure. The 
whole number of votes cast for Justice of the Supreme Court at the 
regular election last preceding the filing of any petition for the initia- 
tive or for the referendum shall be the basis on which the number of 
legal voters necessary to sign such petition shall be counted. Petitions 
and orders for the initiative and for the referendum shall be filed with 
the Secretary of State, and in submitting the same to the people he, 
and all other officers, shall be guided by the general laws and the act 
submitting this amendment, until legislation shall be especially pro- 
vided therefor." 



38 

Note I. The above section is an amendment to the 
original Constitution, and was adopted by the Twentieth 
Legislative Assembly ; adopted by the Twenty-first Legislative 
Assembly ; adopted by the people, by a vote of 62,024 for, to 
5,668 against it, June 2, 1902. Total vote of the State June 
2, 1902, 92,990. 

Note 2. Section i as originally adopted was as follows : 

"The legislative authority of the State shall be vested in the 
Legislative Assembly, which shall consist of a Senate and House of 
Representatives. The style of every bill shall be: 'Be it enacted by 
the Legislative Assembly of the State of Oregon,' and no law shall 
be enacted except by bill." 

Appendix B 

Section la of Article IV of Oregon Constitution is as 

follows : 

" § la. The referendum may be demanded by the people against 
one or more items, sections, or parts of any act of the Legislative 
Assembly in the same manner in which such power may be exercised 
against a complete act. The filing of a referendum petition against 
one or more items, sections, or parts of an act shall not delay the 
remainder of that act from becoming operative. The initiative and 
referendum powers reserved to the people by this Constitution are 
hereby further reserved to the legal voters of every municipality and 
district, as to all local, special and municipal legislation, of every 
character, in or for their respective municipalities and districts. The 
manner of exercising said powers shall be prescribed by general laws, 
except that cities and towns may provide for the manner of exercising 
the initiative and referendum powers as to their muncipal legislation. 
Not more than ten per cent of the legal voters may be required to 
order the referendum nor more than fifteen per cent to propose any 
measure, by the initiative, in any city or town." 

Note. — The above section was proposed by initiative peti- 
tion filed in the office of the Secretary of State February 3, 
1906, and adopted by vote of the people, 47,678 for, and 16,735 
against, June 4, 1906. Total vote of the State June 4, 1906, 
99.445- 

Appendix C 

Section 2 of Article XI, as amended, of Oregon Consti- 
tution is as follows : 

" § 2. Corporations may be formed under general laws, but shall 
not be created by the Legislative Assembly by special laws. The 



39 

Legislative Assembly shall not enact, amend, or repeal any charter or 
act of incorporation for any municipality, city, or town. The legal 
voters of every city and town are hereby granted power to enact and 
amend their municipal charter, subject to the Constitution and crim- 
inal laws of the State of Oregon." 

Note I . The above section was proposed by initiative peti- 
tion filed in the office of the Secretary of State February 3, 
1906, and adopted by vote of the people, 52,567 for, and 
19,852 against, June 4, 1906. Total vote of the State June 4, 
1906, 99,445- 

Note 2. Section 2 of the original Constitution read as 
follows : 

"Corporations may be formed under general laws, but shall not be 
created by special laws except for municipal purposes. All laws passed 
pursuant to this section may be altered, amended or repealed, but not 
so as to impair or destroy any vested corporate rights." 

Appendix D 

As another instance of the working of the initiative under 
the amendments of the Oregon Constitution, attention is called 
to the amendment of Article VII of the Oregon Constitution, 
adoped at the election held November 8, 19 10, 

The amendment provides, in effect, that the judicial power 
of the State shall be vested in one Supreme Court and in such 
other Courts as may, from time to time, be created by law. 
It further provides that the judges shall be elected by the 
legal voters for a term of six years; that the Courts shall 
remain as at present constituted until otherwise provided by 
law; and that in all civil cases, three- fourths of the jury may 
render a verdict. 

The main objectionable features of this amendment are in 
its Section 3, which is as follows : 

"Section 3. In actions at law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
Court of this State, unless the Court can affirmatively say there is no 
evidence to support the verdict. Until otherwise provided by law, 
upon appeal of any case to the Supreme Court, either party may have 
attached to the bill of exceptions the whole testimony, the instructions 
of the Court to the jury, and any other matter material to the decision 
of the appeal. If the Supreme Court shall be of opinion, after con- 
sideration of all the matters thus submitted, that the judgment of the 



40 

Court appealed from was such as should have been rendered in the 
case, such judgment shall be affirmed, notwithstanding any error com- 
mitted during the trial; or if, in any respect, the judgment appealed 
from should be changed, and the Supreme Court shall be of opinion 
that it can determine what judgment should have been entered in the 
Court below, it shall direct such judgment to be entered in the same 
manner and with like effect as decrees are now entered in equity 
cases on appeal to the Supreme Court. Provided, that nothing in this 
section shall be construed to authorize the Supreme Court to find the 
defendant in a criminal case guilty of an offense for which a greater 
penalty is provided than that of which the accused was convicted in 
the lower Court." 

It will be seen that there is apparently a conflict between 
the provisions of the first sentence of Section 3, relating to 
the effect of a verdict by a jury in an action at law, and the 
power and duty of the Supreme Court on an appeal when 
there is attached to the bill of exceptions by either appellant 
or respondent, "the whole testimony, the instructions of the 
Court to the jury, and any other matter material tO' the 
decision of the appeal." 

Under the familiar rule of construction that where, in a 
statute, there are apparently conflicting provisions, they must 
be reconciled if it is possible to do so. Section 3 should be 
construed tO' mean that the verdict of a jury cannot be 
re-examined by any Court inferior to the Supreme Court, and 
only by the latter when the whole record is before it. Thus, 
a Circuit Court cannot grant a new trial if there be a verdict 
of a jury, with a scintilla of evidence to support it, even when 
such a verdict is excessive or outrageous or given under 
prejudice or passion; probably, not on account of newly dis- 
covered evidence. Once a verdict, always a verdict, until it 
reaches the Supreme Court. The sufficiency of the verdict will 
apply to appeals to the Circuit Court where there is a jury 
trial in the County Court or in a Court of a Justice of the 
Peace. It would seem that practically there can be no appeal 
to the Circuit Court, when there has been a jury trial in an 
inferior Court. The testimony is not transmitted in such 
appeals to the Circuit Court. But the provisions of the first 
sentence as tO' the conclusions of a verdict by a jury do not 
apply to a criminal case, for the last sentence of Section 3 is : 

"Provided, that nothing in this section shall be construed to 
authorize the Supreme Court to find the defendant in a criminal case 



41 

guilty of an ofifense for which a greater penalty is provided than that 
of which the accused was convicted in the lower Court." 

The appeal provided for in Section 3 applies to both civil 
and criminal cases. The words are: "Upon appeal of any 
case to the Supreme Court" the provisions apply. And what 
are the provisions upon an appeal? Either the appellant or 
the respondent may (and certainly the appellant always will) 
"have attached to the bill of exceptions the whole testimony, 
the instructions of the Court to- the jury, and any other matter 
material to the decision of the appeal." Does this include the 
verdict? It is immaterial. The verdict of the jury, in the 
Court below, is not necessarily even a guide to the Supreme 
Court. It must be guided by "the whole testimony, the 
instructions of the Court to the jury," and also "any other 
matter" that either the appellant or respondent may deem 
"material to the decision of the appeal." It may enter a judg- 
ment "after a consideration of all the matters thus submitted.'" 
If the Supreme Court decides for the respondent, it may do so, 
"notwithstanding any error committed during the trial" by the 
Court below or by the jury. It must consider whether the 
judgment "was such as should have been rendered in the Court 
below," after a review of the whole testimony, and also after 
considering "other matters" in the record. There may be 
similar action by the Supreme Court, in favor of the appellant, 
if "it shall be of the opinion that it can determine what judg- 
ment should have been entered in the Court below." What, 
then, is the value of the verdict? By this method of appeal 
is not trial by jury practically abolished in Oregon? And yet 
trial by jury has been in existence in English-speaking coun- 
tries from the time of the Anglo-Saxon rule in England until 
the present day! 

No provision is made in this amendment for sending the 
case back to the lower Court for re-trial. Its apparent object 
is to authorize the Supreme Court to make a final determina- 
tion in every law case appealed, and also in criminal cases, and 
to direct what judgment shall be entered in the Court below. 
But how can the Supreme Court make such a determination 
when the Court below has excluded testimony which should 
have been admitted? Or made other rulings materially preju- 
dicial to the rights of one of the litigants ? To appeal a civil 



42 

action to the Supreme Court, merely on errors of the lower 
Court, will amount to nothing if there has been a verdict of a 
jury, for "no fact tried by a jury shall be otherwise re-exam- 
ined in any Court of this State," excepting only when a case 
is appealed to the Supreme Court, and the whole testimony, 
etc., is attached to the bill of exceptions. Any matter which 
can now be shown after the trial, as, for instance, improper 
conduct by the jury, or that prejudice or passion influenced 
its verdict, and not appearing by the record of the trial, it 
would seem, cannot be considered by the lower Court or by 
the Supreme Court. Certainly if the Supreme Court did take 
cognizance of such new matters, it could not well determine 
what the judgment should be. But this amendment gives the 
Supreme Court the power to dispense a kind of crude. Oriental 
justice, which may cover deficiencies in this amendment. 

While Section 3 gives the right by law to change the 
powers conferred by it on the Supreme Court in regard to 
determining what judgments shall be entered in civil and 
criminal cases, there is no right, by any law, to change the 
first sentence of Section 3. A change in the latter can be 
made by Constitutional amendment only. If the power is 
taken from the Supreme Court to set aside a verdict and to 
render a judgment, then a verdict once given cannot be 
re-examined by any Court; however unjust or unfair, it 
must stand. For centuries the jury has been a check on the 
tyranny and corruption of judges, while, at the same time, 
upright judges have corrected the verdicts of ignorant, preju- 
diced, and venal juries. To do away with this balance of 
power is to set aside the best safeguards for justice which the 
wit of man, guided by the experience of centuries, has been 
able to devise. 

Judgements of the Supreme Court in Criminal Cases 

At first sight, the first sentence of this Section 3 would 
make it appear that this Section 3 applied to civil cases only. 
But that is not the fact. The rest of the section applies to 
criminal cases also. The punctuation is bad. The word 
"provided," which is preceded by a period, should be preceded 
by a colon. What follows after the word "provided" is a part 
of the sentence. There is no limitation on the "appeal of any 



43 

case to the Supreme Court," but the hmitation is "Provided, 
that nothing in this section shall be construed to authorize the 
Supreme Court to find the defendant in a criminal case guilty 
of an offense for zuhich a greater penalty is provided than that 
of which the accused was convicted in the lower Court." 

Mark the words, the offense "of which the accused was 
convicted in the lower Court," not the offense nor crime for 
which he was indicted nor for which he was tried ! If the 
accused, in a lower Court, is convicted of a crime for which 
he was not indicted nor tried, of course an appeal will lie. 
But the Supreme Court may find him guilty of an offense, 
without indictment, the only limitation being that the Supreme 
Court cannot "find the defendant * * * guilty of an 
offense for which a greater penalty is provided than that of 
which the accused was convicted in the lower Court." This 
is made plainer, and is accentuated, by the following provision 
of Section 5 of said amendment, viz : "No person shall be 
charged in any Circuit Court with the commission of any 
crime or misdemeanor defined or made punishable by any of 
the laws of this State, except upon indictment found by a 
grand jury." By a necessary implication, this provision does 
not apply to the Supreme Court, which on appeal may find 
the accused guilty of another crime or offense, but not one 
"for which a greater penalty is provided than that of which 
the accused was convicted in the lower Court." The accused 
may be indicted in a Circuit Court for murder, and convicted 
of rape or arson by the Supreme Court ; indicted for burglary, 
and convicted on appeal of mayhem ; indicted for forgery, and 
found guilty of obtaining money on false pretenses ! And may 
thus be convicted of a crime for which he was not given a 
right to make a defense. If Circuit Courts are abolished by 
law, can persons be tried for criminal offenses without indict- 
ments? Indictments are only necessary in Circuit Courts. 

Certainly the proposers of this amendment knew little of, 
or cared nothing for the history of the English people. They 
ignored the examples of history. Of how, for centuries, the 
English people struggled against oppression and tyranny, and 
for the right of a fair and legal trial by a trial jury in civil 
and criminal cases, and in all felonies upon an indictment 
found by a grand jury; of how they were triumphant in 



44 

the so-called revolution of 1688; of the establishment of the 
Bill of Rights, which, in its essential features, is a part of the 
original Constitution of the State of Oregon; of the causes 
which led to the American Revolution ; of the Revolution itself ; 
of the Declaration of Independence. They ignored the debates 
in the Convention when the Constitution of the United States 
was formed; the fifth and sixth amendments to the Constitu- 
tion of the United States ; what was published in The Federal- 
ist; personal liberty as opposed to tyranny; and human rights 
as against the tyranny of Courts. Take this amendment, with 
its contradictory provisions, and determine, if you can, what 
was in the minds of its framers, and what was their intent. 

The people and the legal voters of Oregon are certainly 
of as high average intelligence as those of any other State in 
the Union. Its earliest pioneers were people of high courage 
and intelligence, who first saved Oregon and then made it. 
Oregon has ever since attracted conservative people. It has 
been no place for the adventurer or the idler. Up to 1900, its 
growth was not fast. Its population, as shown by the census of 
that year, was 413,536. Its population, as shown by the census 
of 19 10, is 672,765, an increase of 226,261 in ten years. But 
only a part of Oregon's voters have taken the initiative amend- 
ments seriously. Very few of them have read the proposed 
amendments, fewer still have taken the trouble to give any 
serious thought as to what most of the initiative amendments 
meant. Many do not vote on initiative measures, hoping that 
what is right or proper will prevail. Many who voted for 
this amendment of Article VII of the Constitution were misled 
by the first clause of its ballot title. Its ballot title was as 
follows : 

"For amendment to the Constitution of the State of Oregon, pro- 
viding for verdict by three-fourths of jury in civil cases; authorizing 
grand juries to be summoned separate from the trial jury, permitting 
change of judicial system by statute, prohibiting re-trial where any 
evidence to support verdict; providing for affirmance of judgment on 
appeal notwithstanding error committed in lower Court, directing 
Supreme Court to enter such judgment as should have been entered 
in lower Court; fixing terms of Supreme Court; providing judges of 
all Courts be elected for six years, and increasing jurisdiction of 
Supreme Court." 

This careless, not to say dilettant, way of voters consider- 
ing or not considering serious amendments of the Constitution 



45 

by the initiative is one of the strongest reasons against its use. 
If the voters will not seriously, carefully, intelligently and con- 
scientiously act, then it must continue to be a failure and, at 
the same time, a menace to the stability of government as it 
has heretofore prevailed in the United States. 

Consider the vote by which this amendment was adopted ! 
Initiative amendments do not require a majority of all the 
voters, merely a majority of the votes cast for or against the 
amendment. The total number of votes cast for Governor, 
which was less than the number of registered voters, at the 
election November 8, 1910, when this amendment was adopted, 
was 1 17,690. The vote in favor of the adoption of this amend- 
ment was 44,545, and against its adoption 39,307. The affir- 
mative votes were 14,301 less than a majority, a proportion 
of votes cast for the amendment as compared with the total 
votes for Governor of less than thirty-eight per cent. There 
were 33,738 voters for Governor who did not vote on the 
amendment at all. The total number of voters who voted 
against this amendment, and those who^ did not vote on it, 
is 73,045, as against 44,545 who voted for it. And thus a 
Constitution is amended in Oregon and the vital principles of 
American institutions and the precedents of law, and the safe- 
guards of liberty and of a republican form of government, 
may be set aside. 

It may be that my conclusions as to the effect of this 
amendment are wrong, but I believe I am right. In any 
event, a radical change has been made in Oregon's funda- 
mental law. It is true, the Oregon Supreme Court may, by 
its decisions, amend this initiative amendment of Article VII, 
and say that its effect must be as the Supreme Court decides. 
It was held in Straw v. Harris, 54 Ogn. 424 (103 Pacific 
Reporter, yjy), that "the language used in the amendment 
considered would appear to give" certain powers, and that 
"whatever may be the literal import of the amendment, it 
cannot be held that the Oregon Constitution can be so 
amended." But this is a limitation on the power of the voters 
of Oregon to amend the Constitution, and is a limitation that is 
not now in the Constitution itself. What then of this sacred 
right of the initiative? And what of the doctrine, by which 
it is upheld — that the people are never wrong? And thus 



46 

thirty-eight per cent of them are right in amending the Con- 
stitution for the other sixty-two per cent. Let the minority 
rule ! 

As there are no limitations on the powers of the voters to 
amend the Oregon Constitution, it would not be impossible 
to have an amendment providing for referendum votes on 
decisions of the Supreme Court. A petition with nine thou- 
sand signatures would require such an amendment to be sub- 
mitted to a vote at the next election. 

I have written to show in how crude, unsatisfactory, and 
ignorant a manner radical changes may be made by initiative 
amendments to a carefully considered and established Consti- 
tution, such as Oregon has had for more than fifty years. 
It is to be hoped that the time is not far distant when the 
legal voters of Oregon will invoke the initiative to abolish it. 



FLC 



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